DOJ seeks Supreme Court rehearing of child rape death penalty case

[JURIST] Officials from the US Department of Justice (DOJ) [official website] have filed a motion [PDF text] with the US Supreme Court [official website] requesting permission to petition for rehearing in Kennedy v. Louisiana [opinion; JURIST report], in which the Court found that a death sentence constitutes cruel and unusual punishment when imposed for a crime of child rape in which the victim was not killed. The majority in the case supported its reasoning by saying that very few states had such laws and that - incorrectly - there were no federal laws allowing the punishment for rape. Shortly afterwards, the DOJ said that it had mistakenly failed to brief the Court [JURIST report] on the existence of a military law [PDF text] allowing capital punishment for child rape. The motion, filed Monday, notes:

While the United States believes that the Courts decision is incorrect and that the States law should be upheld under a proper analysis, even if the Court reaches the same result following rehearing, rehearing is warranted to ensure that a material omission in the decisionmaking process has not tainted the Courts decision on a matter of such profound constitutional, moral, and practical importance. Accordingly, the United States urges the Court to grant rehearing.

The DOJ motion is highly unusual as groups not party to the original case are usually barred from seeking rehearing. AFP has more. SCOTUSblog has additional coverage.

Patrick Kennedy was sentenced to death in Louisiana for raping a minor, one of the few remaining crimes where the death of a victim is not required for the death penalty. The Court found that in cases where the victim was not killed, the death penalty fails to serve "deterrent or retributive" purposes invoked for its use. Last week, Louisiana state prosecutors petitioned [PDF text; JURIST report] the Court to reconsider the case, arguing that a 2006 amendment to the Uniform Code of Military Conduct [LII materials] does in fact allow the death penalty at court-martial for rape and child rape. The Court rarely agrees to such petitions, but Louisiana lawyers said a review was warranted because of that oversight. The oversight was first raised [CAAFlog post] by a civilian Air Force lawyer in his blog on military justice.

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